Bluezone Mobile Media ("BZMM") is a digital marketing agency which offers, as part of its service, a high end mobile website solution which
includes mobile websites which can be viewed optimally on just about any digital device with a connection to the Internet (including PCs, laptops,
tablets and over 5000 different mobile phones) and to which potential customers are quickly and easily directed on scanning a Quick Response
code, displayed on, for example motorcars or billboards, into their mobile phones.
These are the standard terms and conditions applicable to the BZMM Website Design and Hosting Services (the "Services", each individually a
"Service") offered by BZMM
1.Terms and Amendment Procedure
1.1 This agreement comprises:
1.1.1 the terms and conditions of this agreement;
1.1.2 the Terms of Use displayed at http://bluezonemedia.mobi and your individual site;
1.1.3 the proposal, if sent to you (the "Proposal"); and
1.1.4 written confirmation by BZMM to you of receipt of payment by you of the charges applicable to the Services ("Payment Confirmation").
1.2 This agreement commences on the date upon which BZMM confirms to you by email or any other written medium that a Service has been
commenced ("Commencement Date").
1.3 We may vary these terms as this agreement or the terms of the operation of any Service, at any time by a general notice on a page of the
Internet referred to on the home page of the BZMM Web Site at http://bluezonemedia.mobi. Changes other than price changes will become effective
upon publication of the notice. Where we vary the charges for any Service, we will notify you of these variations either by a general notice on a page
of the Internet referred to on the home page of the BZMM Web Site at http://bluezonemedia.mobi, or, by written notice to you. Where we vary any
charges for the Services, we will give at least 30 days notice of the change by either of the preceding means, and the new prices will apply at the
end of that period. We may at any time and without prior notice or liability to you to alter the Services in the course of the ongoing development of
the Services.
1.4 If you use the Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended
terms.
1.5 These terms constitute the agreement in its entirety and supercede all prior agreements.
1.6 Any reference in this agreement to BZMM's "Supplier" is a reference to any third party service provider of BZMM (a "Supplier"), if and to
the extent a Supplier is supplying any part of the Services to you on behalf of BZMM.
2. Services
2.1 BZMM will use reasonable efforts to provide to you the Services described on the BZMM Website in relation to the website services you
have purchased.
2.2 You agree to provide BZMM with such contact information as BZMM or its Supplier may reasonably require in order to provide the Service
to you. You further agree to provide BZMM with any updates to such Service Contact Information, as may be required from time to time.
2.3 If applicable, you shall at all times keep your password and log-in details ("Password Details") secure. You agree that BZMM cannot and
does not know whether you have given access to your account and to the Services to other people (whether knowingly or not). You therefore agree
that you are totally responsible for:
2.3.1 when and how your account with BZMM is used (including, without imitation, if your accounts and/or the Service are terminated pursuant to
clause 12 (if applicable)); and
2.3.2 the actions of the people (if any) you allow to access, or transmit information through the systems of BZMM or its Supplier, or otherwise
utilise the Services.
2.4 You agree that BZMM may from time to time require you to provide your Password Details to BZMM. You acknowledge that if you fail to
provide such Password Details to BZMM if requested by BZMM, BZMM reserves the right not to provide any assistance to you in connection with the
Services.
2.5 You agree that you are solely responsible for any of your data and content, as supplied by you and/or third parties ("Your Content") and for
any other files (including, without limitation, email files, if applicable), residing on the Supplier's servers.
2.6 The Services provided to you under this agreement are provided in accordance with the data transfer bandwidth limits and/or disk space
limits, as agreed with you from time to time (Agreed Unique Page Views). BZMM may monitor your usage of the Services to ensure that you are
complying with the agreed Megabytes. If data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes, you agree that
BZMM may require you to purchase any additional data transfer bandwidth and/or disk space and your failure to do so may result in the Services
ceasing to operate or function. In addition you also agree that if at any time your data transfer bandwidth usage and/or disk space usage exceeds
the Agreed Megabytes, BZMM or its Supplier may suspend any and all Services, or, in the case of BZMM, terminate this agreement. In the event that
any such action is taken by BZMM or its Supplier (as the context requires), you agree that you shall not be entitled to a refund of any fees paid in
advance of such corrective action.
2.7 You agree that BZMM or its Supplier may be required to perform maintenance to maintain the continuous operation of the Supplier's
servers, which maintenance may affect the operation or functioning of the Services. We will attempt to provide you with notice of the maintenance
downtime, except when circumstances beyond the control of BZMM or its Supplier prevent either BZMM or its Supplier (as the context requires)
from doing so. You also agree that BZMM or its Supplier may also be required to suspend the Services, or disconnect or deny you access to the
Services, in accordance with clause 12.1.2.
2.8 You agree that BZMM or its Supplier shall maintain and control ownership of all IP addresses that may be assigned to you by BZMM's
Supplier, and you further agree that BZMM or its Supplier may, at their sole discretion, change or remove any and all such IP addresses.
2.9 You expressly grant to BZMM and its Supplier a licence to cache the entirety of your Web Site, including Your Content, hosted by BZMM's
Supplier under this agreement. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in
connection with the grant of this licence to BZMM and its Supplier. You also agree that any such caching is not an infringement of any of your
intellectual property rights or any third party's intellectual property rights.
2.10 You agree that BZMM's Supplier may from time to time add, remove or vary any software with respect to the Service/s, or otherwise add,
remove or vary any functionality with respect to the Service/s ("Services Change"). You hereby consent to any Services Change that may be
undertaken by BZMM's Supplier from time to time. BZMM will use all reasonable commercial endeavours to provide you with 60 days' notice of any
Services Change that would constitute a non-backwards compatible change.
2.11 You may from time to time request BZMM to provide you with Your Content, where Your Content has been provided by you to BZMM in hard
copy, and where you provided Your Content to BZMM together with a stamped, self-addressed envelope. You agree that neither BZMM or its Supplier
will otherwise be required to provide you with copies of Your Content.
TERMS AND CONDITIONS
2.12 You agree to take all necessary or desirable steps to ensure that any content (including, without limitation, any content pertaining to
the Services that is or could be unsuitable for children) is labeled appropriately and is presented in a way that complies with all relevant laws
and industry policy.
3. Billing and Payment
3.1 You must pay for the Services in accordance with the prices and charges contained in the Proposal or as set out on the BZMM Website
(as applicable, and as amended from time to time in accordance with clause 1.3). Those fees and charges may include one or more of:
3.1.1 a fixed non-refundable build and design fee, payable in advance;
3.1.2 a monthly or annual recurring fee, payable in advance;
3.1.3 custom build fees, payable in accordance with the Proposal, payable in advance; and
3.1.4 other customisation fees, payable on a time and materials basis in arrears as agreed from time to time.
3.2 You must pay all prices and charges for the Service and other amounts incurred by you or any designated users or incurred as a result
of any use of the Services (whether authorised or not) in accordance with the Proposal. You agree to keep your billing and account information
up to date and to notify BZMM of any changes to such information from time to time.
3.3 Prices and charges published on BZMM's Web Site or set out in the Proposal are exclusive of VAT unless otherwise stated.
3.4 You consent to BZMM or its Supplier obtaining a credit bureau report containing personal information about you (as well as information
concerning commercial creditworthiness and activities) for the purpose of assessment by BZMM of an application for credit (whether
commercial or personal) or for the purpose of the collection of payments that are overdue.
3.5 If we have invoiced you in arrears for any Services, and you fail to pay the charges in any invoice by the due date specified in any
applicable billing provisions (as referred to in clause 3.2 above) or the invoice ("Unpaid Charges"), in addition to any other rights under this
agreement BZMM may suspend or terminate the Service.
3.6 You agree that in the event of any action being taken by BZMM to recover any overdue amount due to it under this agreement or the
Proposal, as evidenced for example by, without limitation, your credit card company notifying BZMM of you disputing the payment of, or refusing
to pay such charge, or where your credit card payment has been declined or reversed, any costs incurred by BZMM in recovering the debt
(including, without limitation, any legal expenses (on an attorney/client basis), collection commission charges or any other
reasonable associated costs incurred by BZMM) are payable by you to BZMM and shall be recoverable by BZMM as a separate debt or as part of
ay costs order sought against.
4. AUP and Privacy Policy
4.1 You agree to comply with BZMM's Acceptable Use Policy located at http://bluezonemedia.mobi, as varied from time to time by BZMM in
accordance with clause 1.3 ("AUP"). In addition, you agree that neither you, nor any other person whom you permit to use the Services either
undertakes, or attempts to undertake, any of the following additional prohibited activities:
4.1.1 use or access any websites, or include in Your Content, any pornography, nudity and sex-related merchandising ("Adult Material") of
any sort, including by means of creating or maintaining any links to websites containing any Adult Material;
4.1.2 create, use or maintain, or access any MP3 files or any MP3 websites, unless expressly permitted by BZMM and/or its Supplier;
4.1.3 create, use or maintain, or access websites that promote illegal activities (including, without limitation, hacking, serial numbers,
cracks or information that violates any law whatsoever);
4.1.4 create, use or maintain, or access any website whose primary purpose is file distribution or mirroring another website;
4.1.5 promote a website hosted by the Supplier through unsolicited email or spamming, irrespective of whether the unsolicited email or
spam is sent through the Supplier's email servers or not;
4.1.6 distribute copyrighted software, pirated software, MP3 files or Emulators/ROMs.
4.2 If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, or undertake or
attempt to undertake any Additional Prohibited Activity, in addition to any other rights of BZMM under this agreement, you agree that BZMM or
its Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of BZMM, terminating this
agreement. In the event that any such corrective action due to a violation of the AUP occurs, or, due to you or any other person whom you permit
to use the Services undertaking or attempting to undertake any Additional Prohibited Activity, BZMM shall not refund to you any fees paid
to BZMM prior to such corrective action.
4.3 You agree to comply with BZMM's Privacy Policy located at http://bluezonemedia.mobi , as varied from time to time by BZMM from
time to time in accordance with clause 1.3 ("Privacy Policy").
4.4 You agree that BZMM may disclose your account and other information in accordance with the AUP and Privacy Policy.
5. Your Warranties
You warrant that:
5.1 you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation
(whether made orally or in writing and regardless of the medium used) made by either BZMM or its Supplier concerning this agreement or any of
the Services, other than any statement or representation contained in this agreement;
5.2 you are at least 18 years of age;
5.3 your use of the Services will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary rights
of BZMM, its Supplier or any third party;
5.4 you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or downloaded to and
from the Server of BZMM's Supplier by you does not contain any computer virus and will not in any way, corrupt the data or systems of any
person (including, without limitation, BZMM or its Supplier); and
5.5 you will otherwise at all times use the Services in accordance with this agreement (including, for the avoidance of doubt, the AUP or
the Privacy Policy).
6. General Disclaimer of Warranties
6.1 To the extent permitted by law, neither BZMM nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information
providers, merchants, licensors nor the like (each a "Relevant Party") of either BZMM or the Supplier, make any warranties of any kind, either
expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to,
warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such
warranties are hereby excluded.
6.2 BZMM agrees to use all reasonable efforts to provide the Services to you. However, you acknowledge to, and agree with, BZMM, that
nothing in this agreement shall constitute an express or implied warranty or guarantee by any Relevant Party of either BZMM or its Supplier:
6.2.1 that the Services will be uninterrupted, error free or not subject to delays (technical or otherwise);
6.2.2 that the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having
unauthorised access to the services or systems of BZMM or its Supplier;
6.2.3 concerning the results or success that may be obtained from the use of the Services;
6.2.4 concerning any increase in revenue, profit or goodwill that may be obtained as a consequence of you using the Services (including, for
the avoidance of doubt, any increase in revenue, profit or goodwill in connection with any products and/or services that you may determine to
offer for supply, or supply via your web site, the Internet or otherwise ("Your Products and Services");
6.2.5 as to the accuracy, reliability, completeness or content of the Services, any information services or merchandise contained in or
provided through the Services, or, for the avoidance of doubt, any information provided by BZMM or its Supplier in any advice, report or
communication to you or any other party.
6.3 You acknowledge and agree that no Relevant Party exercises any control over, and accepts no responsibility for, the content of the
information (including, without limitation, Your Content) passing through the Supplier's host computers, network hubs and points of presence
or the Internet, nor, for any of your Products and Services (if applicable).
6.4 You further agree that no Relevant Party shall be liable for:
6.4.1 Your Content or loss of any of Your Content or files (including, without limitation, email files, if applicable) transferred either to or
from you or stored or backed-up by you or any of your customers via the Services; and/or
6.4.2 any damage to or loss to Your Content as a result of any request by you pursuant to clause 2.11.
7. Indemnity
You will indemnify and defend BZMM and its Supplier and all directors, officers, employees, and agents of BZMM and its Supplier (each an
"Indemnified Party") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal
or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or directly
or indirectly relating to:
7.1 your Products and Services (if applicable); and/or
7.2 any breach of this agreement by you; and/or
7.3 the use of the Services by you; and/or
7.4 any Services Change (as contemplated by clause 2.10); and/or
7.5 the implementation of the AUP by BZMM, any action taken by BZMM in accordance with the AUP, or, any breach or violation of the AUP;
and/or
7.6 any action taken by BZMM or its Supplier in connection with you undertaking or attempting to undertake any Additional Prohibited
Activity.
Such claims shall include, but shall not be limited to, claims based upon trademark, trade name, copyright and patent infringement, trademark
dilution, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract,
defamation or injury to reputation, or other injuries or damage to business.
8. Limitation of Liability
8.1 You agree that neither BZMM nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of
profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even
if BZMM or its Supplier (as the case may be) has been advised of the possibility of such damages.
8.2 Subject to clause 8.1, you further agree that the aggregate liability of BZMM and its Supplier for any damages, losses and causes of
actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual Rand amount paid by you for the Service
which gave rise to such damages, losses and causes of actions.
8.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract
excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However,
the liability of BZMM and its Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of
the services again; or payment of the cost of having the services supplied again.
8.4 We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential
damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of BZMM and its Supplier (and the
liability of any director, officer, employee, agent, affiliate, content provider or service provider of BZMM and its Supplier) shall be limited to the
greatest extent permitted by applicable law.
9. Intellectual Property
9.1 You acknowledge that all right, title and interest in any and all:
9.1.1 technology, including the software;
9.1.2 any documentation and material that is part of or provided with the Services; and
9.1.3 any know-how, trademarks or service marks of BZMM or its Supplier, (collectively, "Our Intellectual Property") is vested in BZMM, its
Supplier and/or the licensors of BZMM or its Supplier (as the context requires).
9.2 Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our
Intellectual Property.
9.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse
engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do
so.
9.4 Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute
any of Our Intellectual Property in any manner without the prior written consent of BZMM and/or its Supplier (as the context requires);
provided, however, that nothing in this clause 9.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This
clause 9.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may
now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent
such third-party licensors publicly provide such rights, title or interest in the third-party software to you.
10. Confidential Information
You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and
communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property
and trade secrets of BZMM or its Supplier ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information
and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon
request of BZMM or on termination or expiration of this agreement, you shall return the Confidential Information of BZMM or its Supplier then in
your possession to BZMM or its Supplier. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or
hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is
disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the
information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose
provided by BZMM and/or its Supplier (as the context requires); or (f) is required by law to be disclosed.
11. Force Majeure
Neither BZMM nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due
to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage,
embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in
telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or
equipment needed for provision of the Services.
12. Suspension or Termination of this agreement
12.1 In addition to any other rights of suspension under this agreement, BZMM or its Supplier may from time to time without notice to you
suspend a Service, or disconnect or deny you access to any Service:
12.1.1 if you fail to comply with any provision in this agreement (including failure to pay charges due, or, for the avoidance of doubt, any
provision in the AUP or Privacy Policy), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the
operation of the Service, until the breach (if capable of remedy) is remedied to the satisfaction of BZMM or its Supplier (as the context
requires);
12.1.2 during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to
procure the resumption of the Services as soon as reasonably practicable.Notwithstanding any suspension of any Service under this clause
12.1, you shall remain liable for all charges due at the commencementof the suspension period throughout the period of suspension.
12.2 In addition to any other rights under this agreement, you agree that BZMM may without notice to you remove, amend or alter your
data upon being made aware of:
12.2.1 any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory,
offensive or in breach of a third party's rights;
12.2.2 if directed to do so by any competent authority under a "take down notice", amended if we determine (acting reasonably) that we are
obliged to do so; or
12.2.3 an outside party or outside device disrupting or attempting to disrupt the Services.
12.3 In addition to any other rights of termination under this agreement. BZMM may terminate this agreement and cease providing the
Services to you at any time on 30 days written notice to you. You may terminate this agreement and cease obtaining any Services from BZMM,
or, terminate any Service/s being provided by BZMM to you, on 30 days' written notice to BZMM in accordance with the process specified by
BZMM from time to time provided that if such notice is given during the 12 months after the Commencement Date, such notice will
only be effective at end of the 13th calendar month following the expiration of that first year of service.
12.4 In addition to clause 12.3, and, in addition to any other rights of termination under this agreement, BZMM may terminate this
agreement and cease providing the Services to you at any time on written notice to you if BZMM has at any time suspended any Service or
disconnected or denied access to any Service under clause 12.1.1.
12.5 Where BZMM supplies a Service to you through a Supplier, BZMM may terminate and replace such Supplier at any time without notice
to you. BZMM will, however, endeavour to replace such Supplier:
12.5.1 with no or minimal disruption to the supply of the Services; and
12.5.2 on substantially the same terms as are set out in this agreement.
12.6 Where BZMM is unable to comply with clause 12.5.2, you may terminate your agreement with BZMM and cease obtaining any
Service/s from BZMM within 30 days' of being notified of the new terms on which BZMM intends to supply the relevant Service/s to you. Where
you terminate your agreement with BZMM under this clause 12.6, BZMM will refund you any fees previously paid by you on a pro rata basis.
12.7 In addition to any other obligation under this agreement, if you terminate any Service or, either BZMM or you terminate this
agreement:
12.7.1 you must pay all outstanding charges (including, without limitation, data transfer bandwidth over-usage charges and/or disk space
over-usage charges) to BZMM immediately;
12.7.2 other than if the termination occurs under clause 12.6, you must pay any charges that BZMM incurs from its Supplier in relation to
any charges that BZMM's Supplier incurs in connection with migrating your data or retrieving any of your emails following termination of this
agreement;
12.7.3 any licence issued to or by you in relation to the Services will cease from the date of termination; and
12.7.4 BZMM or its Supplier may delete all data, including Your Content or files (including, without limitation, email files, if applicable) from
any storage media without any liability to you whatsoever. However and provided that you pay all amounts owing to BZMM, you may require it
give you a DVD with all your design files and, if applicable, to transfer your mobi address to you and ensure that your QR code points to that
address.
13. Cancellation
13.1 You may cancel a Service/Services in accordance with this clause 13. This clause 13 shall not apply where you terminate this
agreement and cease obtaining the Services from BZMM pursuant to clause 12.6.
14. Miscellaneous
14.1 The law in force in South Africa governs this agreement and the transactions contemplated by this agreement.
14.2 You consent irrevocably to the exclusive jurisdiction of the Kwa – Zulu Natal High Court, Durban: South Africa.
14.3 This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any
Services or assign your rights and obligations under this agreement without the prior written consent of BZMM.
14.4 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or
varied except in writing signed by the parties.
14.5 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of
this agreement shall remain in full force and effect.